by Megan J. Ballard
NB: This posting is written as a response to a piece by Massimo Moratti, entitled “Evictions and cookie-cutter approaches to restitution: a response to Megan J. Ballard”, published in TN on February 9, 2011.
Part of the job of a legal academic is to write law review articles. Many practicing lawyers suggest that these articles – often lengthy and theoretical — are rarely read by anyone other than fellow legal academics. It is, then, a pleasant surprise when someone outside the legal academy actually reads and comments on our work. And it is even more satisfying when the commentary comes from someone with practical experience in the subject matter of the article. This is true, in part, because the tensions and conflict inherent in practice cannot always be captured by scholarly writing, as Mr. Moratti points out. Accordingly, I am grateful for this dialogue.
While Mr. Moratti is critical of parts of my article, he does not seem to assail my primary claims: 1) the legal foundations on which property restitution rests are not entirely on solid ground (a claim acknowledged in our blog author’s November 18 discussion about stretching the existing rules of international law); and 2) many of the theoretical justifications for the Pinheiro Principles may not bear out in the long run, particularly if we fail to heed lessons learned by earlier “law and development” efforts.
Mr. Moratti does, however, take issue with at least two elements of what he calls my “debatable perception” of the restitution process in Bosnia and Herzegovina. For the record, I have no “perception” of that process. As the 26 footnotes to my three-page description illustrate, I relied on published articles and reports for my data — including seven citations to Charles Philpott, the author Mr. Moratti notes, and 12 citations to our blog author, Rhodri Williams.
First, Mr. Moratti assumes and then criticizes an argument I do not make — that restitution involved Westerners seeking to transform the property tenure system in Bosnia and Herzegovina. While I do cite human rights practitioners in stating that the international community was instrumental in imposing new property laws, I do not assert that these laws related to property tenure.
Second, Mr. Moratti suggests that I conflate return and restitution. He may have missed my statement: “Many who succeeded in reclaiming their property [in Bosnia and Herzegovina] chose to sell or exchange it to facilitate relocation elsewhere.” Apparently he also overlooked my quotation from Rhodri Williams: “the return of property to people has not always resulted in the return of people to property” (Williams, Post-Conflict Property Restitution and Refugee Return in Bosnia and Herzegovina: Implications for International Standard-setting and Practice, 37 NYU J. Int’l L & Pol. 441, 445).
Mr. Moratti additionally claims that restitution is not well suited to a law and development analysis. On this point I will happily agree to disagree. My recent Fulbright research in the country of Georgia underscored for me that the framework is appropriate. Similarly, it illustrated that I may have been right to urge caution for the unintended consequences of international involvement in matters related to property restitution, having learned from the unintended consequences of earlier law and development movements.
Readers of this blog will likely be aware of the conflicts in Georgia’s break-away regions of Abkhazia and South Ossetia that have produced a sizeable population of refugees and IDPs. Beginning in the late 1990s, the Council of Europe, ABA-CEELI, OSCE, USAID and UNHCR each played a role in advising Georgia on crafting a law to restore housing and property rights to victims of the conflicts. Parliament passed a property restitution law in December 2006, reflecting the input of various international actors. While international attention was focused on this law, however, President Saakashvili issued two decrees establishing a data collection and registration system for property abandoned in these occupied territories, later called the My House program. (The Ministry of Refugees and Accommodation, which administers part of the program, uses high-resolution satellite imagery to create a geographic information system data base of abandoned properties and their owners.)
The restitution law failed for a variety of reasons. My House, however, has continued. After the 2008 war, USAID became involved in IDP property registration. This is where international involvement could have benefited from a broader view to possibly circumvent unintentional consequences.
USAID tacked on to an existing grant to a Georgian NGO the new task of creating a registration system somewhat parallel to the My House program for the 2008 IDPs. Because the USAID-sponsored program does not fall under the presidential decrees creating My House, this parallel program is different in its design, administration, and impact. The result seems to be that property rights of the IDPs displaced in the early 1990s, working through the My House program, are treated differently from the rights of the 2008 IDPs, who filed somewhat similar property declarations through the USAID-sponsored program.
The information gathered through these two programs is important because it could be used to form the basis for an eventual restitution or compensation scheme. The differences between the two programs, however, could complicate any future restitution or compensation system. Perhaps international efforts related to property rights of IDPs following the 2008 war could have been better directed at bolstering the capacity of My House to accommodate the new influx of IDPs and working to correct some of the flaws in that program.
Mr. Moratti and I largely agree on the value of dialogue to span the scholar / practitioner gap. He states that the opportunity to read what a scholar has written about human rights work is an instance “where practice meets theory to exchange ideas, confirm theories and validate practices.” I wholeheartedly concur with the first part of his statement — it is a significant opportunity to exchange ideas. A theorist’s role, however, is not confined to validating practice, nor is a practitioner’s role only to confirm theories. If such were the case, the exchange of ideas would be undeniably dull and unproductive. My work as a scholar committed to research on property restitution, and as a teacher training future human rights practitioners, will only be strengthened by new perspectives, not by confirmation of my own ideas. Consequently, I will shamelessly solicit such input by posting an abstract or draft of my next article (tentatively titled “Pre-planning for Post-conflict Property Restitution: A Case Study from Georgia”) on this blog. I welcome the constructive criticism of all.